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DEPARTMENT OF THE AIR FORCE ONIZUKA AIR FORCE BASE SUNNYVALE, CALIFORNIA and LOCAL 2090, NATIONAL FEDERATION OF GOVERNMENT EMPLOYEES Case No. 92 FSIP 036

DEPARTMENT OF THE AIR FORCE ONIZUKA AIR FORCE BASE SUNNYVALE, CALIFORNIA and LOCAL 2090, NATIONAL FEDERATION OF GOVERNMENT EMPLOYEES

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

)

In the Matter of )

)

DEPARTMENT OF THE AIR FORCE )

ONIZUKA AIR FORCE BASE )

SUNNYVALE, CALIFORNIA )

)

and ) Case No. 92 FSIP 36

)

LOCAL 2090, NATIONAL FEDERATION OF )

GOVERNMENT EMPLOYEES )

)

)

DECISION AND ORDER

Local 2090, National Federation of Federal Employees (Union)
filed a request for assistance with the Federal Service Impasses
Panel (Panel) to consider a negotiation impasse under the Federal
Service Labor-Management Relations Statute (Statute),
5 U.S.C. § 7119, between it and the Department of the Air Force,
Onizuka Air Force Base, Sunnyvale, California (Employer).

After investigation of the request for assistance, the Panel
determined that the impasse relating to the Employer's civilian
drug testing program should be resolved through written submissions
from the parties, with the Panel to take whatever action it deemed
appropriate to resolve the impasse. Written submissions were made
pursuant to this procedure, and the Panel has now considered the
entire record.

BACKGROUND

The Employer is headquarters for the 2d Satellite Tracking
Group, which operates, maintains, and manages a worldwide satellite
tracking station network supporting the Department of Defense, the
North Atlantic Treaty Organization, and allied nations, as well as

the NASA space shuttle program. The Union represents approximately
157 General Schedule (GS) and Wage Grade (WG) employees. GS
employees work as secretaries, procurement or travel clerks,
contract specialists or negotiators, engineers, budget analysts,
and specialists in logistics, security, safety, or equipment. WG
employees hold such positions as utility systems repairer or
operator, power support system mechanic, and electrician. The
parties are covered by a collective bargaining agreement (CBA)
which expires in July 1994.

This dispute arose during impact-and-implementation
negotiations over the Employer's civilian drug testing program.
After the Union filed its request for Panel assistance, the
Employer implemented that program, including its proposed provision
which affords employees who have tested positive for drug use a 5-minute consultation with a Union representative immediately
preceding their meetings with the Medical Review Officer (MRO).
The MRO is a licensed physician with knowledge of substance abuse
disorders whose role is to review and interpret positive test
results obtained through the Employer's drug testing program. For
Onizuka Air Force Base employees, the MRO is to be an Air Force
physician assigned to Travis Air Force Base, "some 2 hours distant
when traffic is light" (Employer's written submission at 1).
Approximately 100 GS and WG bargaining-unit employees whose
positions have been approved for testing will be affected by the
outcome of this dispute.

ISSUES AT IMPASSE

The parties disagree as to (1) whether employees who have

tested positive for drug use should be allowed Union representation
at meetings with the MRO and (2) whether the Employer should be
obligated to notify employees of their right to Union
representation at meetings with the Employer's representatives
before any such meetings.

POSITIONS OF THE PARTIES

1. The Union's Position

The Union proposes that an employee with a positive test
result shall be entitled to Union representation at any meeting
between the employee and the Employer's representatives concerning
the test results. The Employer shall notify the employee of his or
her right to representation prior to any such meeting. The right
to representation shall extend to meetings with the MRO.

The Union contends that any meeting concerning a positive test
result between the tested employee and a representative of the
Employer, including the MRO, is "an examination of an employee in
the unit by a representative of the agency in connection with an
investigation," within the meaning of section 7114(a)(2)(B of the
Statute, and otherwise falls within the scope of that section.
Section 7114(a)(2)(B) provides that an exclusive representative
shall be given the opportunity to be represented at such an
examination if the employee reasonably believes that the
examination may result in disciplinary action against him or her
and if the employee requests representation. The Union states that
only the question of whether the interview with the MRO is an
"examination . . . in connection with an investigation" and whether
it would be reasonable for an employee to believe that the
examination may result in disciplinary action is in dispute. In
connection with the first part, the Union notes that the MRO's role
is to verify that the positive test results were caused by illegal
drug use and that his inquiry, including his eliciting of
information from the employee, is investigatory in nature. It is
reasonable to envision that during their meeting the employee would
make statements either denying, admitting, or explaining the
alleged drug use in response to questions posed by the MRO. As to
the employee's reasonable belief that disciplinary action may
result, such a belief is more than reasonable, as disciplinary
action must be taken unless the employee can offer the MRO an
adequate explanation for the positive test result.

Aside from the statutory right to representation, the Union's
proposal will serve an important purpose. Because of the severe
consequences of the employee's failure to explain or justify a
positive test result, there are few situations where Union
representation would be more urgently needed. Union
representatives can play an important supporting role on behalf of
employees who will be standing on the threshold of serious
disciplinary consequences. In doing so, the Union representatives
do not intend, nor do they have the capacity, to interfere with the
MRO's authority to rule on any exculpatory evidence offered by the
employee.

2. The Employer's Position

The Employer counter-proposed that, upon request, an employee
with a positive test result shall be entitled to Union
representation at any meeting between the employee and Agency

management representatives concerning the test results, except when
the MRO affords the employee the opportunity to discuss the results
of the test. Upon request, an employee shall be entitled to
consultation with a Union official, for not more than 5 minutes,
before the meeting with the MRO.

With respect to the issue of requiring the Employer to notify
an employee, before any meeting with management representatives
about the test results, of the right to Union representation, the
Employer argues that such a requirement goes beyond what the law
and a current agreement between the Union and the Employer require.
Thus, for example, section 7114(a)(3) of the Statute provides that
each agency shall annually inform its employees of their rights to
Union representation at an "examination . . . in connection with an
investigation." (See discussion of section 7114(a)(2)(B), above,
under "The Union's Position.") The parties' agreement contains a
provision requiring the Employer to "take such action" as
prescribed in the Statute to inform employees of their rights and
obligations. To require any more in the way of notification, the
Employer contends, would make the statutory requirement "mere
surplusage" and would violate the intent of Congress. Moreover,
the Union already has an opportunity to brief all employees who are
assigned to "testing designated positions," at a meeting to be held
at least 30 days prior to implementation of the drug testing
program.

Concerning the issue of Union representation during an
employee's meeting with the MRO, the Employer argues that such a
meeting is not an "examination" as contemplated by the Statute, nor
is it reasonable for the employee to believe that it may result in
discipline. On the first point, the meeting with the MRO is
voluntary and serves the purpose of "giving the employee the
opportunity, in a highly confidential and private medical setting,
to support an assertion of legitimate drug use." The MRO is not
"investigating," since he or she can verify a positive result
without the interview if the employee declines the opportunity.
The interview is much more akin to a medical discussion than to an
examination: it lacks the confrontational aspect inherent in an
examination in connection with an investigation. Moreover, it is
not reasonable to believe that the voluntary interview will result
in discipline because its purpose is only exculpatory in nature and
because the MRO is not responsible for determining what action will
be taken. Reasonable fear of discipline arises, if at all, upon
administration of the drug test and upon confrontation with
management officials who have discovered the employee's illegal
drug use, but not upon meeting voluntarily with a medical doctor
who is seeking exculpatory information.

Finally, the Employer asserts that its counter-proposal (5-minute consultation before the employee's meeting with the MRO)
presents the fairest solution to the problem. The presence of a
Union representative during a medical interview is disruptive to
the doctor-patient relationship, creates a confrontational
atmosphere where none is expected, costs a great deal of
representational time because a 6-hour round trip to the MRO's
office at Travis Air Force Base is likely, and serves no legitimate
need of the employee, "especially since Union representatives have
no expertise in the subject matter to be discussed."

CONCLUSIONS

We conclude that the parties' dispute over Union
representation at employee meetings with the MRO and over
notification of the right to Union representation should be
resolved on the basis of the Union's proposal. We find that the
Union's proposal more adequately addresses the needs of employees
who are faced with the considerable risks to their employment
status resulting from positive drug tests, and that the burden it
places on the Employer is minimal.

The Employer's opposition to the disputed parts of the Union's
proposal is based largely on the argument that the employee rights
sought go beyond those provided in the Statute. However, in ruling
that proposals similar to that made here by the Union were
negotiable, the Federal Labor Relations Authority specifically held
that nothing in section 7114(a)(2) of the Statute "prevents unions
from negotiating contractual rights to union representation which
exceed the rights set forth in that section of the Statute."
National Treasury Employees Union and U.S. Department of Energy,
Washington, D.C., 41 FLRA 1241, 1247 (1991). The Authority also
held in the same case that the presence of a union representative
during an employee meeting with an MRO would not affect the
agency's right to ensure the security or integrity of the testing
process (Id. at 1246) nor would the providing of employees with
notice of their contractual rights to Union representation during
all stages of the drug testing process (including the meeting with
the MRO) mandate the release of otherwise protected information or
in any other way directly interfere with management's rights (Id.
at 1248.

On the basis of the record presented by the parties before us
here, we reach similar conclusions about the instant dispute.
Preliminarily, the Authority's decision in Department of Energy
makes it clear that the resolution of this dispute does not depend
on whether the Union's proposal goes beyond the representation and
notification rights that are mandated by the Statute. It must
depend, rather, on a careful weighing of the legitimate interests
of the parties. Here, the employees with whom the parties'
respective proposals are concerned will be in a highly stressful
situation. Although their meetings with the MRO are voluntary,
these meetings provide them with an important, if not the most
important, vehicle for defending themselves against the
disciplinary outcomes that are understood to lie at the end of an
adverse determination. If they so choose, their election to attend
with the assistance of a Union representative could at least in
some cases affect the outcome by permitting them to make more
cogent and persuasive presentations of their explanations of the
positive test results. Such an assisted presentation would be no
more likely to impede the MRO in making his or her findings than to
aid the MRO and the ultimate decision-makers in ensuring that a
valuable employee is not lost to the Employer by virtue of an
erroneous finding.(1) The Employer-proposed 5-minute consultation is
not an adequate substitute.

We agree with the Union and the Authority that there is
nothing inherently disruptive about the presence of a union
representative during an employee's meeting with the MRO. Nor does
anything in the Union's proposal preclude the Employer from placing
reasonable limitations on the representative's participation, as is
its right where participation is pursuant to section 7114(a)(2)(B)
of the Statute, in order to prevent an adversary confrontation and
to achieve the objective of the examination. SeeNorfolk Naval
Shipyard, 9 FLRA 458 (1982). Moreover, we do not think that, given
the MRO's function at such meetings, it is accurate to describe the
MRO's relationship to the employee as essentially that of doctor-patient. And, to the extent that confidential matters will be
discussed, the Union representative will become privy only to what
the employee wishes him or her to know. The representative may be
excused at any time at the employee's option. Finally, to the
extent that Union representation does present some burden on the
Employer, the historically low number of Federal employees who have
tested positive for drug use under various agency drug programs
minimizes any realistically potential burden.

With respect to the issue of Employer notification of each
positively-tested employee as to his or her rights to
representation, such notification could well prevent a serious
hardship to an employee who, under the stress of the situation,
fails to remember being advised of those rights at the last annual
notification or at the single briefing held before the drug testing
program was implemented. In our view, the potential resulting
forfeiture of those rights outweighs the slight burden on the
Employer to make notification a routine part of the drug test
program. Presumably, this could be done at the same time the
employee is either invited or required to participate in any
meeting to which the right of representation applies.

ORDER

Pursuant to the Authority vested in it by . . . .

hereby orders the following:

The parties shall adopt the Union's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 15, 1992

Washington, D.C.

1. 1 In NLRB v. Weingarten, Inc., 420 U>S 251, 262 (1975),
the Supreme Court noted that a union representative's
participation in an investigatory interview is useful to both
employee and employer. The Court quoted with approval the
comments of the arbitrator in Independent Lock Co., 30 Lab. Arb.
744, 746 (1958): "[Participation by the union representative]
might reasonably be designed to clarify the issues . . ., to
bring out the facts and the policies concerned at this stage, to
give assistance to employees who may lack the ability to express
themselves in their cases, and who, when their livelihood is at
stake, might in fact need the more experienced kind of counsel
which their union steward might represent. The foreman, himself,
may benefit from the presence of the steward by seeing the issue,
the problem, [and] the implications of the facts . . . more
clearly. . . ."